Natural Born Citizen — Chapter 11: Congressional Duties

Evaluating the measures Congress and the cadidates could have taken to resolve the natural born citizen definition

As was mentioned in the opening of the book, in April of 2008 a non-binding Senate Resolution was passed stating that John S. McCain was a natural born citizen.  It is clear that many were questioning the Constitutional eligibility of Senator McCain, and the Senate found the matter important enough to pursue such a measure.  The non-binding Senate Resolution in total with the exception of individual Senators’ statements reads:

RESOLUTION

Recognizing that John Sidney McCain, III, is a natural born citizen.

Whereas the Constitution of the United States requires that, to be eligible for the Office of the President, a person must be a ‘‘natural born Citizen’’ of the United States;

Whereas the term ‘‘natural born Citizen’’, as that term appears in Article II, Section 1, is not defined in the Constitution of the United States;

Whereas there is no evidence of the intention of the Framers or any Congress to limit the constitutional rights of children born to American citizens serving in the military nor to prevent those children from serving as their country’s President;

Whereas such limitations would be inconsistent with the purpose and intent of the ‘‘natural born Citizen’’ clause of the Constitution of the United States, as evidenced by the First Congress’s own statute defining the term ‘‘natural born Citizen’’;

Whereas the well-being of all citizens of the United States is preserved and enhanced by the men and women who are assigned to serve our country outside of our national borders;

Whereas previous presidential candidates were born outside of the United States of America and were understood to be eligible to be President; and

Whereas John Sidney McCain, III, was born to American citizens on an American military base in the Panama Canal Zone in 1936: Now, therefore, be it

Resolved, That John Sidney McCain, III, is a ‘‘natural born Citizen’’ under Article II, Section 1, of the Constitution of the United States.[i]

Two very important statements appear in the above non-binding Senate Resolution.  First, they relied, in part, on The Nationality Act of 1790 when they stated:

Whereas such limitations would be inconsistent with the purpose and intent of the ‘‘natural born Citizen’’ clause of the Constitution of the United States, as evidenced by the First Congress’s own statute defining the term ‘‘natural born Citizen’’[ii]

They had to know that the “natural born citizen” language used in The Nationality Act of 1790 was later removed and that they gave such status to it is at least curious.  The second egregious error on their part was placing any significance on the following statement:

Whereas previous presidential candidates were born outside of the United States of America and were understood to be eligible to be President[iii]

Which previous Presidential candidates?  Did any of these Presidential candidates become President?  Were they referring to Presidential candidates that were eligible through the grandfather clause of Article II, Section 1 of the U.S. Constitution“ or a citizen of the United States, at the time of the adoption of this Constitution[?]” [iv]  Is it not clear that this statement in the non-binding Senate Resolution is steeped in incompetence?

Were the Senators trying to illicit some sort of Presidential candidacy precedent regarding who is deemed natural born and who is not based on who has run?  Such a line of thinking is indefensible.  We know for a fact that during the Presidential election of 2008 Roger Calero (he also ran in 2004) was placed on the ballot of many states as the Socialist Workers Party candidate even though he is absolutely not eligible to the hold the office of the President.  According to a website that promotes the Socialist Worker’s Party themilitant.com:

Born in Nicaragua, Calero has lived in the United States since 1985 when his family moved to Los Angeles. He joined the socialist movement there in 1993.[v]

Roger Calero certainly was not a natural born citizen having been born in Nicaragua to parents who were not U.S. citizens.  If you doubt that Roger Calero actually made it to the ballot of any State’s general election here is the State of New Jersey’s official governmental website where they list on Page 6 of 11 of their “Official List of Candidates for President For November 2008 General Election” one Roger Calero of the Socialist Workers Party.[vi]  Further, Roger Calero according to the same official website garnered 523 total votes in the State of New Jersey in the 2008 Presidential election.[vii]  So, I ask these Senators, how is it that they can place any legitimacy in the statement:

Whereas previous presidential candidates were born outside of the United States of America and were understood to be eligible to be President[viii]

Are they including Mr. Calero in this statement?  Mr. Calero clearly was born outside of the United States of America.  Mr. Calero is clearly not a natural born citizen and is ineligible to run for the office of President.

As of April 2008, the Senators were certainly aware that they had a conundrum on their hands.  They had the Republican Candidate for President potentially not eligible to be President of the United States with only seven months left until the General Election, and yet, they were willing to pass a non-binding resolution that could not guarantee John S. McCain’s eligibility risking a potential usurper to the Office of the Presidency.  Had John McCain won, it would have been clear that lawsuits would have ensued testing that eligibility.  John McCain would have begun his Presidency with serious questions as to his eligibility.  If the U.S. Supreme court later defined the term natural born citizen through a proper procedure and decided that John S. McCain did not meet that definition, the country would be thrust into a Constitutional crisis.  Any legislation that John McCain would have approved through signature would have been null and void and would require legislation to be written, approved, and signed again.  There is no doubt that a Constitutional crisis would have resulted.

Further, the Senate put Senator John McCain in quite a predicament with respect to him getting his name placed on the ballot in his own State of Arizona.  In order to be placed on the 2008 general election ballot as a presidential candidate, you had to submit a Presidential Preference Election Candidate Nomination Form (A.R.S. § 16-242)[ix]  Said form specifically requires the Presidential candidate to swear, affirm and have notarized the form which contains in part the following:

I am a natural born citizen of the United States, am at least thirty-five years of age, and have been a resident within the United States for at least fourteen years.[x]

Senator McCain was placed on the Arizona ballot, and, in fact, he won the Electoral votes of the State of Arizona in the 2008 presidential election, but was all of that accomplished in falsely swearing on a nomination form in his own State?  It should be noted that John McCain signed this form before the U.S. Senate passed the non-binding senate resolution; however, John McCain would have known he had already attested and signed the form and that his natural born citizen status remained under suspicion.

The United States Senate, according to our Constitution, is the legislative branch of the government with the purpose of representing the interests of the States.  This is why, regardless of population of the several States, each State is allowed two senators.  The U.S. Constitution originally dictated that Senators would be elected by the legislatures of their States.  It was not until 1913 under the 17^th Amendment to the U.S. Constitution that the election of Senators was changed to election by the people of their respective states.  How could the Senate, which is supposed to represent the interests of the States, place John McCain in a position where he may have falsely attested to get on his own State’s ballot?

In fairness to the Senate, they most likely had no authority to do anything other than what they did at least by April of 2008.  We have seen legislation come from the Congress regarding citizenship, but that legislation deals with Naturalization laws.  Defining the term natural born citizen is not a naturalization issue.  The only methods at our disposal to define the term natural born citizen are: 1) thorough court cases that specifically address the natural born citizen clause such as the cases currently pending in numerous courts, or 2) through Constitutional Amendment.  It really wasn’t practical at the time for the Congress to attempt to amend the Constitution before the 2008 General Election as there wouldn’t have been enough time to get it accomplished prior to the election that was a mere 7 months away.  The process to amend the Constitution is contained in Article V of the Constitution and reads as follows:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate. [xi]

As you can see from the description, this would have been a time consuming process and there just was not adequate time to accomplish this before the 2008 General Election at least not if started in April of 2008 when the non-binding Senate Resolution was passed.  However, this issue of whom is a natural born citizen was not new to this Senate.  In fact, many attempts have been made in the past as to Amending the U.S. Constitution to define natural born citizen.  This same question of John McCain’s eligibility arose in the 2000 Republican primary; however, John McCain did not secure the nomination; therefore, the matter was dropped.  Are we to simply alleviate the United States Senate of its burdens to clarify matters because there wasn’t enough time?  Should we not wonder why the Senate did not take up the matter after many candidates had attempted to gain access to the Presidential ballot whom were not eligible?  I contend that the Senate has had plenty of time to clarify the natural born citizen clause through Constitutional Amendment through the many years of their body’s existence, and if they were interested in protected the people of the United States from usurpation of the Office of the President, they would have written and passed through the proper process an Amendment to the U.S. Constitution defining natural born citizen.

The House of Representatives, the other branch (with the Senate) of the Congress, is supposed to be the representation of the people in our Constitutional Republic.  The House of Representatives is based on the population in the several States thereby resulting in divvying up statistically its members.  Did the House of Representatives have any method that the Senate did not possess to define natural born citizen?  The answer is no, both the House of Representatives and the Senate make up the Congress and legislative powers granted within the Constitution apply to the Congress as a whole.  The negligence in addressing this matter by the Senate can also be attributed to the House of Representatives.  So what could have or should have been done to resolve this issue after April 2008 and before the November 4, 2008 election?

Both John McCain and Barack Obama were U.S. Senators while running for President in 2008.  Both men were keenly aware of the non-binding Senate resolution passed regarding John McCain’s natural born citizenship status as John McCain was the subject of the bill and Barack Obama was a co-sponsor of the bill.  Both men had to swear and attest to being natural born citizens on Arizona’s Presidential Preference Election Candidate Nomination Form (A.R.S. § 16-242).[xii]  When John McCain signed this form under what knowledge or authority did he make this attestation? 

In Barack Obama’s case, he studied law at Harvard and received his degree, a doctorate of jurisprudence, from Harvard.  According to a New York Times article written by Jodi Kantor on July 30, 2008 entitled “Teaching Law, Testing Ideas, Obama Stood Slightly Apart,” Barack Obama spent twelve years teaching at the University of Chicago Law School.  In the article, Kantor describes Barack Obama’s time at the University of Chicago Law School in part as follows:

At the school, Mr. Obama taught three courses, ascending to senior lecturer, a title otherwise carried only by a few federal judges. His most traditional course was in the due process and equal protection areas of constitutional law.[xiii]

It is easy to understand that Barack Obama’s studies and eventual teaching of constitutional law may not have focused on or taken him into the intricacies of naturalization laws, the natural born citizen requirement and the cases we have presented in this book, but surely he would have had some familiarity with these matters.  When Barack Obama signed Arizona’s Presidential Preference Election Candidate Nomination Form (A.R.S. § 16-242),[xiv] under what authority or understanding of the definition of natural born citizen did he feel comfortable in making this attestation?

Did not John McCain and Barack Obama have some moral duty to ensure they were eligible to be President under Article II, Section 1 of the U.S. Constitution?  Since when has political power and gain asked a man to abandon character and his moral compass?  Each man had to know that if it was later proven they did not meet the Constitutional requirement to be President that a Constitutional crisis would result jeopardizing the fundamental stability of our Constitutional Republic and society as a whole.  What type of men risk so much for personal gain?  This is the quandary we find ourselves in today.  Why didn’t either gentleman, file a law suit within the State of Arizona asking for clarification of the definition of natural born citizen?  The form did not define the term natural born citizen.  Each candidate had to know that he could not definitively make the case that he was without doubt a natural born citizen.  After filing suit and obtaining a definition, if the definition provided did not fit the description of the circumstances of the candidates birth, he could have appealed the case all the way up to the U.S. Supreme Court.  Given each gentleman’s prominence and what was at stake, it is quite reasonable to suggest that these matters could have made it through the courts before the National Conventions of each party held in July 2008 for the Democrats and August 2008 for Republicans.  Why would these two men, one of which was going to be elected President, take an oath (which they had already taken as U.S. Senators) to protect and defend the Constitution show no fidelity to it in their respective quests to become President?  With their apparent unwillingness to bring resolution to the matter, could not have someone or something else required them to pay fidelity to the Constitution?  The answer is emphatically, yes!  The supposed fourth estate, the media, and, in particular, what we refer to as the main stream media could have thoroughly investigated this matter forcing the issue to be put to rest.  However, the main stream media had no interest in paying fidelity to our Constitution either.

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[i] Senate Resolution on McCain’s Eligibility — http://leahy.senate.gov/press/200804/041008c.html

[ii] Senate Resolution on McCain’s Eligibility — http://leahy.senate.gov/press/200804/041008c.html

[iii] Senate Resolution on McCain’s Eligibility — http://leahy.senate.gov/press/200804/041008c.html

[iv] Cornell University Online Constitution — http://www.law.cornell.edu/constitution/constitution.articleii.html#section1

[v] TheMilitant.com Biography of Roger Calero — http://www.themilitant.com/2008/ElectionCampaign/bios.html

[vi] New Jersey Official List of President Candidates For the 2008 General Election — http://www.njelections.org/2008results/08generalelection/2008-official-gen-elect-candidates-pres-vice-pres-092208.pdf

[vii] New Jersey Official List of President Candidates For the 2008 General Election Results — http://www.njelections.org/2008results/08generalelection/08-official-gen-elect-tallies-pres-120208.pdf

[viii] Senate Resolution on McCain’s Eligibility — http://leahy.senate.gov/press/200804/041008c.html

[ix] State of Arizona Presidential Preference Election Candidate Nomination Paper — http://www.azsos.gov/election/2008/PPE/Nomination_Paper_PPE_Feb_5_2008.pdf

[x] State of Arizona Presidential Preference Election Candidate Nomination Paper — http://www.azsos.gov/election/2008/PPE/Nomination_Paper_PPE_Feb_5_2008.pdf

[xi] Cornell University Law School 17^th Amendment to the U.S. Constitution — http://www.law.cornell.edu/constitution/constitution.amendmentxvii.html

[xii] State of Arizona Presidential Preference Election Candidate Nomination Paper — http://www.azsos.gov/election/2008/PPE/Nomination_Paper_PPE_Feb_5_2008.pdf

[xiii] New York Times “Teaching Law, Testing Ideas, Obama Stood Slightly Aprt” — http://www.nytimes.com/2008/07/30/us/politics/30law.html

[xiv] State of Arizona Presidential Preference Election Candidate Nomination Paper — http://www.azsos.gov/election/2008/PPE/Nomination_Paper_PPE_Feb_5_2008.pdf

Any reproduction of the content in this blog post must credit the author:  KJ Kaufman (aka:  curi0us0nefromthe60s) and must reference a link to this blog site https://hesnotmypresident.wordpress.com or link to the specific blog post cited.  You are free to distribute this content in order to educate the populous as long as you adhere to the aforementioned conditions.  Your cooperation in citing this source when reproducing, referencing or redistributing the content contained herein is greatly appreciated.

Natural Born Citizen — Chapter 10: Summation

Summation of what we have learned thus far

We do best at this point in the book to summarize what we have learned thus far.  We will begin with those facts that are indisputable.

Indisputable Facts:

1. In April of 2008, the United States Senate acknowledged that it was uncertain as to John Sidney McCain’s natural born citizenship status; therefore, they passed a non-binding Senate resolution stating that he was and is a natural born citizen.  Their non-binding Senate resolution amounts to no more than their opinion of the definition of a natural born citizen.
2. The non-binding Senate resolution regarding John McCain’s natural born citizenship status relied on the citizenship of John McCain’s parents. 
3. The non-binding Senate resolution regarding John McCain’s natural born citizenship status relied on John McCain’s father serving in the military at the time of John McCain’s birth. 
4. According to Article II, Section 1, Clause 5 of the United States Constitution, in order to be eligible to the Office of United States President, one must be a natural born citizen. 
5. According to the Naturalization Act of 1790, John Sidney McCain may have been considered a natural born citizen had the wording providing for this condition not been repealed by the Naturalization Act of 1795.  Therefore, the current Naturalization legislation does not make John McCain a natural born citizen. 
6. The 14^th Amendment provides that persons born in the United States and all naturalized citizens under naturalization legislation are citizens of the United States provided they are  “subject to the jurisdiction thereof” of the United States.  Nowhere within the 14^th Amendment is the term natural born citizen(s) used or implied. 
7. The opinion in the Minor v. Happersett case clearly states:  “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” [i]  At the time the Minor v. Happersett case was being considered by the Supreme Court, the 14^th Amendment had already been ratified and was a part of the U.S. Constitution.  Therefore, when the above quoted statement of the court in their opinion in the Minor v. Happersett case was made, they would also be taking into consideration the 14^th Amendment of the U.S. Constitution.
8. In accordance with Barack Obama’s own admissions on his campaign website Fight the Smears, Barack Obama held dual-citizenship at birth (U.S. citizenship through his mother and British citizenship through his father). 

The eight statements above make up the indisputable facts that we have discussed thus far.  The remaining discussions in the book have highlighted facts that remain controversial or within dispute.  We will now outline the important disputable facts that the book has addressed.

Disputable Facts:

1. The meaning of natural born citizen as used in Article II, Section 1, Clause 5 of the United States Constitution uses Emmerich de Vattel’s definition of natural born citizen, i.e., “those born in the country, of parents who are citizens.” [ii]   
2. The meaning of natural born citizen as used in Article II, Section 1, Clause 5 of the United States Constitution uses the English Common Law definition of natural born citizen, i.e., those born in England or its territories with allegiance to England regardless of the parents’ citizenship were natural born subjects.  Under this definition, there are those that argue that the United States use of the term natural born citizenship falls under the same definition meaning those born in the United States or its territories with allegiance to the United States regardless of the parents’ citizenship are natural born citizens. 
3. Some argue that the Wong Kim Ark decision made Wong Kim Ark a natural born citizen.  While others argue that the Wong Kim Ark case made Wong Kim Ark a 14^th Amendment United States citizen.  While still others argue that the Wong Kim Ark ruling is flawed on many levels and incorrectly applied the 14^th Amendment to the opinion rendered in the case.

There are probably numerous other facts we could list under our disputable facts section, but they would do little to add to our discussion here.  The three disputable facts enumerated above tend to summarize the issue we have debated within the pages of this book, and, for our purposes, describe the contention to date as to whether or not John McCain and Barack Obama are natural born citizens.

As a result of the indisputable and disputable facts listed above, it should be clear to all readers that the great injustice perpetrated by the 2008 presidential election was that the American people could not be ensured that either the Republican or the Democratic candidate were, in fact, eligible to hold the position for which they were campaigning.  The result of the 2008 presidential election, therefore, produced a result that could only be described fairly as presenting this country with a Constitutional crisis for the eventual President of the United States may not be Constitutionally eligible to hold the position.

We will now move on to part two of this book that will look at how this Constitutional crisis came to be, and, more importantly, how it could have been avoided.  The branches of the federal government, the candidates themselves, and the 4^th estate (the media) could have prevented this constitutional crisis had they been so inclined.  They were not so inclined, and, as a result, the true losers in the 2008 presidential contest have been the electorate, the American people.

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[i] Findlaw.com – U.S. Supreme Court Minor v. Happersett, 88 U.S. 162 (1872) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=88&invol=162

[ii] Constitution Society — http://www.constitution.org/vattel/vattel_01.htm

Any reproduction of the content in this blog post must credit the author:  KJ Kaufman (aka:  curi0us0nefromthe60s) and must reference a link to this blog site https://hesnotmypresident.wordpress.com or link to the specific blog post cited.  You are free to distribute this content in order to educate the populous as long as you adhere to the aforementioned conditions.  Your cooperation in citing this source when reproducing, referencing or redistributing the content contained herein is greatly appreciated.

Natural Born Citizens — Chapter 9: Allegiance

Allegiance to a country

The founding fathers would have been concerned with allegiance to the newly formed United States of America and their newly formed government.  Obviously, having defeated the British in the Revolutionary War securing their independence and sovereignty in their budding Nation, it was critical to the founders to have loyal patriots running the government.  It cannot be debated that the founders held the occupant to the Office of the President to a higher standard than any other office in the Federal Government by requiring a natural born citizen to be the office holder making no other position within the Federal Government held to the same standard of citizenship (with the exception that the Vice-President must also be held to this standard should he or she become President).  But why did the founding fathers require natural born citizenship for the President and no other office?  Clearly, as John Jay wrote in his letter to George Washington:

Permit me to hint, whether it would not be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government and to declare expressly that the Command in Chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen…[i]

John Jay referred in his letter to “Command in Chief” as we understand today to be the Commander in Chief.  The U.S. President is the Commander in Chief of the armed forces.  To this point in the book, we have not been able to discern with certainty what John Jay meant by natural born citizen, so let us see if we can understand what was meant by Foreigner(s).  Returning to our dictionary.com site, foreigner is defined as: 

a person not native to or naturalized in the country or jurisdiction under consideration; alien.[ii]

Clearly under this definition, this is our first indication that maybe dual citizenship does not preclude one from being a natural born citizen.  Utilizing this definition for foreigner, it is clear that Barack Obama would not be considered an alien of the United States.  Being born in Hawaii and although having dual citizenship, he did possess U.S. citizenship through his Mother, so it would certainly appear that he would not be considered a foreigner or an alien.  Was this enough for him to satisfy what was meant by John Jay’s qualification of natural born citizenship status for the Presidency? 

After the U.S. Constitution was written and signed by our founding fathers, it had to be ratified by the States in order to become the Supreme Law of the land.  In an effort to get the people of New York State to support the ratification of the Constitution, the Federalist Papers were written and published in New York City newspapers to persuade the people.  As the FoundingFathers.info website explains:

In total, the Federalist Papers consist of 85 essays outlining how this new government would operate and why this type of government was the best choice for the United States of America. All of the essays were signed “PUBLIUS” and the actual authors of some are under dispute, but the general consensus is that Alexander Hamilton wrote 52, James Madison wrote 28, and John Jay contributed the remaining five.

The Federalist Papers remain today as an excellent reference for anyone who wants to understand the U.S. Constitution.[iii]

In my searches of the Federalist Papers, I find no discussion of the natural born citizen clause from Article II, Section 1.  Why?  If said provision and requirement is so critical to the Office, why is no further mention of it made in “selling” the Constitution to the people?  It may be as simple as the fact that the Federalist Papers sought to focus their essays on the contentious portions of the Constitution and opposition in general to a federal government rather than spend time on those areas without dispute.  Further, the role and responsibilities of the President as Commander in Chief were discussed in detail in the Federalist Papers even though no mention of the natural born citizen provision was made.  In the final analysis, it may simply be that the term natural born citizen was firmly rooted in the minds of the founders either through de Vattel’s definition or another definition they commonly knew, so the founders never questioned in their minds what was meant.  Was there any other evidence as to why the founders included this provision especially with respect to using the term natural? 

The founding fathers were learned men.  They had read and were versed in many subjects and literate in the writings and teachings of the political thinkers that came before them.  One such political thinker whom the founding fathers were profoundly familiar was Cicero.  In reading Cicero’s works on natural law, the founders concluded that:

The Law of Nature or Nature’s God is eternal in its basic goodness; it is universal in its application.  It is a code of “right reason” from the Creator himself.  It cannot be altered.  It cannot be repealed.  It cannot be abandoned by legislators or the people themselves, even though they may pretend to do so.  In Natural Law we are dealing with factors of absolute reality.  It is basic in its principles, comprehensible to the human mind, and totally correct and morally right in its general operation.[iv]

They created the Supreme Law of Land when they wrote the Constitution based on this idea of natural law.  Emmerich de Vattel’s The Law of Nations is a treatise on natural law as indicated by the full title of his treatise:  The Law of Nations or Principles of Natural Law.[v] 

If we study this idea of natural law in relation to birth, we have to conclude that God given birth rights has something to say on the subject, therefore, the parents citizenship must play a part in the birth rights of the child, and arguably must play at minimum an equal role to the place of birth of the child.   It is reasonable to conclude that this may be the very reason that de Vattel defined natural born citizen in the manner in which he did:  on the soil of the country to citizen parents of the country.

At this point, however, there is a very interesting issue that arises in our modern day society.  We can accept all of the above and yet find in modern times that to be in accordance with natural law that it now may only take one citizen parent and not two to be a natural born citizen.  Why do I make this claim?  I make the claim for these reasons.  Many scholars have argued that the citizenship of a child follows the citizenship of the father, but as Leo Donofrio pointed out the other day on his blog, earlier in our history a Mother’s citizenship could result from “derivative citizenship” meaning at the time a woman married she took on the citizenship of her husband.  In modern times, this is no longer true.  Automatic citizenship upon marriage is not the United States law today.  Therefore, we must now make a distinction between parents and give weight to one over the other which of course we do in practical applications of the law justly or unjustly where the rights of the Mother typically garners more weight.  Could it be said that even though the founding fathers were using de Vattel’s definition of natural born citizenship when they wrote natural born citizen into the Constitution that the definition is not the same today even if you ascribe to original intent Constitutional doctrine?  I think the answer is probably no, let me explain. 

We know that the founding fathers followed natural law in their political concepts of government.  Why is only one citizen parent under natural law, birth rights and natural born citizenship incompatible?  I would argue it is for this reason, allegiance.  As we discussed, in modern America, we no longer have the transfer of citizenship by marriage or “derivative citizenship” by marriage.  In the case of a foreigner marrying a U.S. citizen, the foreigner remains a foreigner with whatever citizenship status they possess at the time that they marry.  Their path to U.S. citizenship is altered in only that they have to wait a few less years to apply for U.S. citizenship and naturalization.  And it is this naturalization that is important to our discussion here not in the traditional sense but in what it can tell us about dual citizens that wouldn’t be naturalized.

The term naturalization in essence means to make natural what is not now natural.  In the case of citizenship, it is to make that persons’ new citizenship natural to him or her.  In other words, his or her citizenship is naturalized so that his or her citizenship can be in accordance with the laws of nature.  One of the processes of naturalization in the United States is to take a “Naturalization Oath of Allegiance.”  The oath is as follows:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the armed forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.[vi]

Now we know that no natural born citizen need take an oath of allegiance.  However, what does it mean if we allow the definition of a natural born citizen to not include the citizenship of both parents, and if one of those parents is not a U.S. citizen thereby conferring that citizenship to the child?  How is it that the child does not by the laws of nature possess some allegiance to that foreign sovereign regardless if they are conscious of it or not?  This is the trouble that I have with using a definition apart from de Vattel’s because we can’t unequivocally say that the person does not possess at least a birth right allegiance to another nation.  Having a birth right allegiance to another nation can present unintended future consequences and certainly cannot guarantee sole and unencumbered allegiance to the United States of America.

In the next chapter of the book, I would like to summarize both the irrefutable facts and the opinions that cannot be known with certainty to layout what we have learned throughout our discourse thus far.  After summarizing what we’ve learned, we will move on to the next part of the book that will look at the reasons we have reached this crisis within our Constitution and how this crisis could have been avoided.

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[i] Columbia University Library – The Papers of John Jay — http://wwwapp.cc.columbia.edu/ldpd/app/jay/search?mode=search&action=search&match=all&p=1&aut=john+jay&submit=Search&recip=george+washington&keywd=natural+born+citizen&rep=&jayid=&y1=&m1=&d1=&y2=&m2=&d2=&sort=date&resPerPage=25

[ii] Dictionary.com  definition of the word “foreigner” — http://dictionary.reference.com/browse/foreigner

[iii] The Federalist Papers e-text — http://www.foundingfathers.info/federalistpapers/

[iv] The 5000 Year Leap A Miracle that Changed the World ©1981 by W. Cleon Skousen p. 40.

[v] The Law of Nations or Principles of Natural Law — http://www.lonang.com/exlibris/vattel/

[vi] Global Policy Forum “Naturalization Oath of Allegiance” — http://www.globalpolicy.org/component/content/article/171/29826.html

Any reproduction of the content in this blog post must credit the author:  KJ Kaufman (aka:  curi0us0nefromthe60s) and must reference a link to this blog site https://hesnotmypresident.wordpress.com or link to the specific blog post cited.  You are free to distribute this content in order to educate the populous as long as you adhere to the aforementioned conditions.  Your cooperation in citing this source when reproducing, referencing or redistributing the content contained herein is greatly appreciated.

Natural Born Citizen — Chapter 8: Dual and Multi Citizenship

Dual and multi citizenship and their relation to natural born citizenship

If a person who is born with dual or multi citizenship can also be a natural born citizen, how does that circumstance potentially jeopardize our Constitutional Republic?  First let’s address the issue of dual and multi citizenship.  In Chapter 7, we discovered that according to Barack Obama’s own campaign website Fight the Smears, Barack Obama possessed dual citizenship upon his birth.  As was noted, his Father was bound by the British Nationality Act of 1948, and as a result, Barack Obama was also bound by that Act as well.  So what does the British Nationality Act of 1948 state regarding the citizenship Barack Obama inherited at birth?  Part II, Section 5 of the British Nationality Act of 1948 states:

Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth.[i]

That would appear fairly straightforward and would thereby make Barack Obama a citizen of the United Kingdom and Colonies.  But the Act goes on to discuss provisions thereafter that affect the above quoted passage.  The provisions in this portion of the passage discuss ways in which citizenship would not be acquired under this section of the Act, but may be obtained in another Section within the Act.  In reviewing the provisions none would have excluded Barack Obama under Part II, Section 5.  It would appear that in accordance with Part II, Section 5 of the British Nationality Act of 1948, Barack Obama at the time of his birth did in fact hold citizenship in the United Kingdom.

In Part II, Section 19 of the Act, renunciation of citizenship is allowed as follows:

(1) If any citizen of the United Kingdom and Colonies of full age and capacity who is also— 

(a) a citizen of any country mentioned in subsection (3) of section one of this Act or of Eire; or

(b) a national of a foreign country,

makes a declaration in the prescribed manner of renunciation of citizenship of the United Kingdom and Colonies, the Secretary of State shall cause the declaration to be registered; and, upon the registration, that person shall cease to be a citizen of the United Kingdom and Colonies:

Provided that the Secretary of State may withhold registration of any such declaration if it is made during any war in which His Majesty may be engaged by a person who is a national of a foreign country.[ii]

Do we have any evidence that Barack Obama renounced his British Citizenship?  In his FactCheck.org reference, he claimed his Kenyan citizenship had expired.  Why is there no mention of his British citizenship?  The answer may lie in the fact that in 1963, two years after Barack Obama’s birth, Kenya gained its independence from Great Britain.  At that time, both Barack Obama Sr. and Barack Obama became Kenyan citizens.  Their citizenship was defined in the 1963 Kenyan Constitution in Chapter 6, Section 87 as follows:

Persons who became citizens on 12th December, 1963

1. Every person who, having been born in Kenya, is on llth December. 1963 a citizen of the United Kingdom and Colonies or a British protected person shall become a citizen of Kenya on 12th December, 1963:

Provided that a person shall not become a citizen of Kenya by virtue of this subsection if neither of his parents was born in Kenya.

2. Every person who, having been born outside Kenya. is on llth December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall. if his father becomes. or would but for his death have become, a citizen of Kenya by virtue of subsection (1). become a citizen of Kenya on 12th December. 1963.[iii]

In accordance with Section 87, Subsection (1), Barack Obama Sr. became a Kenyan Citizen on December 12, 1963.  In accordance with Section 87, Subsection (2), Barack Obama became a Kenyan Citizen on December 12. 1963. 

At the time of gaining Kenyan citizenship, what became of the British citizenship of Barack Obama Sr. and Barack Obama?  The British Nationality Act has been updated numerous times since Kenya became a sovereign country in 1963.  In my research, I have not found anywhere in the Kenyan Constitution information regarding British citizenship.  Neither have I found in the subsequent Amendments to the British Nationality Act of 1948 any language discussing the loss of British citizenship by virtue of Kenya becoming a sovereign country.  On the face of it, I would assume the citizenship was transferred from British citizenship to Kenyan citizenship; therefore, Barack Obama was no longer a British citizen; however, I have no documentation to prove this assumption.  And it is also possible that Barack Obama’s British citizenship remains intact today, and if that is case, such a condition would seem to be a significant issue for a man currently occupying the White House.

For the purposes of our discussion, although it is important what became of Barack Obama’s British citizenship, what is more important is that at the time of his birth he held dual citizenship as both a U.S. citizen and a British citizen.  In our discussion, it is important what the founders when writing the Constitution would have thought about this dual citizenship with respect to the natural born citizen clause of Article II, Section 1 of the Constitution.  My first impression is that the founders would unequivocally have a problem with multi citizenship at birth.  I say that because it seems unfathomable to me that a person whom holds citizenship in another country based on that country’s laws possesses sole allegiance to the nation where he was born.  As such, I can’t imagine how that same person could be considered a natural born citizen and eligible to the Presidency.  In the next chapter, we will look at what the founders may have thought of this condition when we discuss allegiance.

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[i] The British Nationality Act of 1948 — http://www.uniset.ca/naty/BNA1948.htm

[ii] British Nationality Act of 1948 — http://www.uniset.ca/naty/BNA1948.htm

[iii] Kenyan Constitution Chapter 6, Section 87 — http://kenya.rcbowen.com/constitution/chap6.html#87

Any reproduction of the content in this blog post must credit the author:  KJ Kaufman (aka:  curi0us0nefromthe60s) and must reference a link to this blog site https://hesnotmypresident.wordpress.com or link to the specific blog post cited.  You are free to distribute this content in order to educate the populous as long as you adhere to the aforementioned conditions.  Your cooperation in citing this source when reproducing, referencing or redistributing the content contained herein is greatly appreciated.

Natural Born Citizen — Chapter 7: Natural Born Citizen Remains Debatable

Further information on defining natural born citizen

As we can see from reviewing the case law, the definition of natural born citizen remains undefined by the courts and debatable within the public.  From a practical point of view, the definition really comes down to exactly what has already been discussed:  is it enough to simply be born here, or does it also require that both of your parents were U.S. citizens at the time of your birth, jus sanguinis (right of blood)? 

One of the important issues that clouds this debate is that many people confuse the term citizen and the term natural born citizen.  In the court cases we have reviewed so far, no one was conferring natural born citizen on any of the parties to the cases including those citizens described in the 14^th Amendment.  This book is concerned with this special type of citizenship, i.e., natural born citizenship.  The only time natural born citizenship in the United States is required is to hold the Offices of President and Vice-President of the United States.  You do not need to be a natural born citizen to be a Senator, nor to be a Representative in the House.  You don’t have to be a natural born citizen to be Governor of a state, Mayor, or a City Council person.  You do not need to be a natural born citizen to enjoy any of the rights guaranteed to you in the first 10 Amendments of the U.S. Constitution.  Do not these facts on their very face seem to imply or at least lead to the argument that there is something uniquely special about natural born citizenship?  If so, what would that uniqueness be?  Is it unreasonable to think that the uniqueness might just in fact be as de Vattel wrote:  “The natives, or natural-born citizens, are those born in the country, of parents who are citizens [?]”  But what is most important is what our U.S. Constitution and how our current law can guide us in ascertaining a decision.  As the Chief Justice wrote in the Minor v. Happersett decision, “[t]he Constitution does not, in words, say who shall be natural-born citizens.  Resort must be had elsewhere to ascertain that.”[i]  Remember, the opinion written in the Minor v. Happersett case was written after the 14^th Amendment was ratified and became a part of the Constitution, so when the opinion in the case makes the above statement, the 14^th Amendment is included in that statement meaning the 14^th Amendment does not define natural born citizen either.

We have already pointed out that the founding fathers studied de Vattel to the extent that Benjamin Franklin admitted to The Law of Nations use in the Continental Congress.  As a result, the founders would have been aware of his definition of natural born citizen at the time of their writing of the Constitution.  We have looked at the Nationality Act of 1790.  We have reviewed the 14^th Amendment and the cases of Minor v. Happersett as well as U.S. v. Wong Kim Ark.  We have not, however, in detail looked at the provision in the 14^th Amendment that states “subject to the jurisdiction thereof.”  As a reminder, the 14^th Amendment begins:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.[ii]

There is no doubt that when Barack Obama was born in Hawaii, he would have been subject to the territorial jurisdiction of the United States meaning the laws of the United States and the laws in the State of Hawaii, but would he also be politically subject to the jurisdiction thereof, or did he also hold political jurisdiction via the British Naturalization Act of 1948 to the country of England?  The question we have been debating here is would he have qualified as a natural born citizen?  Is a British citizen at birth a natural born U.S. citizen?

During the Presidential Campaign of 2008, Barack Obama’s campaign put up a website called Fight the Smears (www.fightthesmears.com) in order to debunk any rumors that surfaced about him during the campaign.  One of the rumors surfacing in June of 2008 questioned whether or not Barack Obama was born in Hawaii.  In response to this smear, Barack Obama’s website posted a page on their website debunking this rumor, by showing a digital copy of Barack Obama’s “Certification of Live Birth” from the state of Hawaii.  The website page included an article written by the Washington Post as well as a website post from FactCheck.org where the first (Washington Post) attempted to confirm that he was born in Hawaii while the latter (FactCheck.org) addressed his citizenship.  The page on the Fight the Smears website[iii] debunking the Hawaiian birth certificate smear is depicted below:

At the top of the webpage is the website’s official statement on the matter, and it reads in its entirety as follows:

Smears claiming Barack Obama doesn’t have a birth certificate aren’t actually about that piece of paper – they’re about manipulating people into thinking Barack is not an American citizen. 

The truth is, Barack Obama was born in the state of Hawaii in 1961, a native citizen of the United States of America.

Next time someone talks about Barack’s birth certificate, make sure they see this page.[iv]

The next item on this page of the website was the digital copy of his Certification of Live Birth from the state of Hawaii.  The next item was an extract from The Washington Post article (with a link to the article) stating:

 The Washington Post[v] Debunks Smears, Confirms Barack’s Citizenship

 “The truth: Sen. Barack Obama, born in Hawaii, is a Christian family man with a track record of public service.”

And the final portion of this page on his website showed the statement by Factcheck.org clarifying Barack Obama’s citizenship:

FactCheck.org[vi] Clarifies Barack’s Citizenship

“When Barack Obama Jr. was born on Aug. 4, 1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children.

Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4, 1982.”

In the official statement on the Fight the Smears website, Barack Obama is said to be a “native born citizen.”  The Washington Post extract on the website makes no mention of citizenship.  And the FactCheck.org statement on the website states:

Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948.  That same act governed the status of Obama Sr.’s children.[vii]

At the time the FactCheck.org statement was posted on the Fight the Smears website, sometime in late August or early September of 2008, some people were astounded to see this admission.  These folks made the argument that the website posting proved that Barack Obama had at a minimum held dual citizenship at the time of his birth, and that as a British subject at birth he could not possibly be a natural born citizen.  It did not matter to them that the FactCheck.org statement went on to say that Barack Obama’s Kenyan citizenship expired on August 4, 1982.  For them, this was enough to prove that Barack Obama was not in fact and by his own admission a natural born citizen.  For if his citizenship was governed by an Act of the British Government then he must be subject to their political jurisdiction in some manner.  The logical question being, can a person who possesses dual citizenship at birth be a natural born citizen?   This of course is the seminal question of our discussion.  Barack Obama’s Fight the Smears website refers to him as a native born citizen.  Is there in fact a difference between native born and natural born citizens?

Prima facie evidence suggests when we look at the definitions of native born versus natural born we see no differentiation in the definitions.  Dictionary.com defines native born as:  “born in the place or country indicated,” (definition having its origins from 1490 to 1500) and defines natural born as “a native born” (definition has its origin from 1575 to -85).[viii]  According to Dictionary.com the term native born has its origins prior to the term natural born which logically allows for the later to derive its definition from the former.  As a result, one can conclude that according to Dictionary.com, the case is closed, natural born equals native born.  In fact, in de Vattel’s definition of natural born he somewhat alluded to the terms as equals when he stated:  “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”  If natives is equal to native born then de Vattel would also be stating that they are equal.  It is not clear, however, if de Vattel is in fact using the term natives in place of native born.  Interestingly, no other online dictionary defines natural born, and my Second College Edition of The American Heritage Dictionary (albeit is a bit dated) also does not define the term natural born while it does provide the same definition for native born as dictionary.com.  Can we conclude that these other dictionaries do not define the term natural born citizen because we do not possess a definition as has been argued to this point in the book?

To this point, in the various chapters of the book, we have discussed different types of citizenship including:  natural born citizens, native born citizens, U.S. citizens and naturalized citizens.  Although our endeavor is to define the term natural born citizen, it might be helpful to find a finite definition for each of these terms.  Our friend, M Publius Goat at the Country First website has put together a citizenship chart which is depicted as follows:

Reprinted with Permission

The chart is a little bit hard to read in our reproduced copy of it, but if you click on the chart it will take you to a larger version of the chart.  In order to assist with what is depicted above, here is the breakdown of citizenship:

Citizen of the U.S. = born to at least (1) U.S. citizen parent, or born in the U.S.A., or naturalized as a U.S. citizen

Born Citizen of the U.S. = born in the U.S.

Naturalized Citizen = not born in the U.S. and citizenship rights gained by the process governed by federal statute.

Natural Born Citizen = Both parents U.S. citizens (of any type above) and born in the U.S.A.

I highly recommend that you click on the chart and see the logical definitions and relationships between the types of citizens.

The chart provided makes a lot of sense and logically it appears to give us a clear understanding of the various types of citizenship.  Unlike the proponents of Barack Obama’s natural born citizenship status, I am not just going to point to this chart and claim our work is done, that we now have a definitive answer as to all of our natural born citizenship questions.  This is an excellent start, and lays out citizenship logically for us, but we still have the duty to confirm the chart in accordance with our Constitution and subsequent Amendments and Federal Statutes.  The definition of natural born citizen is becoming much clearer to us as we proceed through these discussions, but we are not arrogant enough to think that we can unequivocally define that which has not been defined within our Constitutional and legal system.  It should be noted that it is not that those whom are opponents to Barack Obama’s natural born citizenship status are saying Barack Obama is definitely not a natural born citizen even though they are fairly sure he is not, they are simply saying at the very least that they have no definitive way of knowing for sure if he is.  As a result, the matter must be decided to protect our nation ensuring adherence to its Constitution.  If a person whom is not a natural born citizen is allowed to occupy the Office of the President of the United States in usurpation, then there is no other law contained within the Constitution that must also be abided.  Should this occur, then the result is anarchy and our nation no longer exists as a Constitutional Republic bound by the rule of law.  Furthermore, there would be nothing to prevent someone from becoming President of the United States whom is not a natural born citizen and has ill intentions whom would do irreparable harm to our nation as a result of becoming President. 

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[i] Findlaw.com – U.S. Supreme Court Minor v. Happersett, 88 U.S. 162 (1872) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=88&invol=162

[ii] Cornell University Online Constitution – http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html

[iii] Fight the Smears Birth Certificate Page — http://www.fightthesmears.com/articles/5/birthcertificate.html

[iv] Fight the Smears Birth Certificate Page — http://www.fightthesmears.com/articles/5/birthcertificate.html

[v] Washington Post “In Flag City USA, False Obama Rumors Are Flying”  http://www.washingtonpost.com/wp-dyn/content/article/2008/06/29/AR2008062901871_pf.html

[vi] FactCheck.org article: Does Barack Obama have Kenyan citizenship?  http://www.factcheck.org/askfactcheck/does_barack_obama_have_kenyan_citizenship.html

[vii] Fight the Smears Birth Certificate Page — http://www.fightthesmears.com/articles/5/birthcertificate.html

[viii] Dictionary.com website:  the definitions of natural born and native born – http://dictionary.reference.com

Any reproduction of the content in this blog post must credit the author:  KJ Kaufman (aka:  curi0us0nefromthe60s) and must reference a link to this blog site https://hesnotmypresident.wordpress.com or link to the specific blog post cited.  You are free to distribute this content in order to educate the populous as long as you adhere to the aforementioned conditions.  Your cooperation in citing this source when reproducing, referencing or redistributing the content contained herein is greatly appreciated.

Natural Born Citizen — Chapter 6: U.S. v. Wong Kim Ark

Citizenship case of a child born on U.S. soil to Chinese nationals

Wong Kim Ark alleged that he was born in the United States in 1873 to parents of Chinese decent whom were subjects of the emperor of China. In August of 1895, Wong Kim Ark was returning to the United States from a temporary visit to China wherein he was refused permission to land (dock) at the port of San Francisco by the collector of customs and was restrained of his liberty based solely upon the pretense that he was not a citizen of the United States.[i]

This case, like the Minor v. Happersett case, occurred after the ratification of the 14^th Amendment.  Proponents of Barack Obama’s natural born citizenship status point to the following passage from the opinion written by Justice Gray[ii]:

The foregoing considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.[iii] (Emphasis added)

Proponents that say Barack Obama is a natural born citizen point to the highlighted portion above concluding that is as much a citizen and the natural born child of a citizen are equivalents in that sentence.  Thus, a child born in the United States of a foreigner domiciled in the United States is a natural born citizen child.  

First, it can be unequivocally argued that the justices in their affirmative opinion above found Wong Kim Ark to be a 14^th Amendment U.S. Citizen.  There can be no dispute of this fact regardless of the soundness of the Justices’ arguments.  It should also be noted that while domiciled in the U.S. and again in accordance with the 14^th Amendment that “every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States” was the additional argument that the opinion of the court was making.

The crux of the ruling though for our purposes is how it relates to the natural born citizen status of an individual and in the highlighted text above, the Justices clearly state:  and his child (snip) [i]f born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.  These twenty-seven words may ultimately decide the eligibility of Barack Obama to hold the Office of the President of the United States. 

The twenty-seven word sentence is the last portion of a much longer sentence, but because it has immediately before it a semi-colon, it stands alone as a complete thought.  The portion of the sentence that has been removed (snipped) is a parenthetical statement and is not necessary to the complete thought of the sentence.  The parenthetical portion that has been snipped is utilized in the sentence to cite an authority.  The fourteenth word of the sentence is the word as (the second time the word as is used in the twenty-seven word sentence) and is one of the most important words in understanding when deconstructing the sentence. 

When as is used in this context it is used as a subordinate conjunction.  Subordinate conjunctions compare two things, but they do not compare two like things.  In order to compare to equal things, correlative conjunctions are used.  In the sentence that we have extracted from the paragraph it is clear that a subordinate conjunction is being used, and in a subordinate conjunction there is a dependent clause and an independent clause. 

In our sentence, the independent clause is is as much as a citizen and the dependent clause is as the natural-born child of a citizen.  The relationship between the two clauses is in fact a comparison though.  It is a comparison between two types of American children.  One child is a child born in America and the other is a natural born American child.  They are not equivalent though because they are separated by a subordinate conjunction rather than a correlative conjunction.  The two children represented in the dependent and independent clauses being discussed are clearly two different children, but they are purposely being compared to one another.  In the independent clause, the child is a citizen even though his parent is a foreigner domiciled in the U.S.  In the dependent clause the child of the citizen is a natural born child.  In the independent clause, the child of the foreigner domiciled in the U.S., although the child is concluded to be a citizen, the foreign parent domiciled here is not necessarily a citizen.  Whereas, in the dependent clause, the parent of the natural born child is in fact a citizen, the parents as well as the child are both citizens.  Two completely different children are being compared to one another making use of the grammatical construct of a subordinate conjunction and determining that both children are citizens but not natural born citizens.  This is a critical point and should not be obfuscated.

Proponents of Barack Obama’s natural born citizen status could easily agree with the above grammatical analysis and still come to the same conclusion that Barack Obama is a natural born citizen.  They might argue even if the subordinate clause in question in itself is not comparing two equivalent children what the Justice is saying is that these two different children are as the final portion of the sentence states “and by operation of the same principle.” [iv]  On the other hand, those analyzing the sentence without deconstructing the sentence grammatically may conclude, just on the face of it, or in accordance with their first impression when they read the sentence appears to equate these two children implying that they are both natural born citizens.

In order to understand the Wong Kim Ark case one must know the history of the day.  At the time, the Chinese people were beholden to the Emperor of China.  The Wong Kim Ark case took very serious the notion of subject to the jurisdiction thereof not only in the sense of jurisdiction held by a nation while you were residing in it as to that nation’s laws, but actual allegiance to the nation in which you were residing.  The Wong Kim Ark case had to wrestle with the ability for a Chinese resident of the United States having legal allegiance under the 14^th Amendment to the United States versus some political allegiance they have to give to the Emperor of China.  In the sentence we have been studying, remember we only took the last part of the sentence after the semi-colon, but the sentence is part of a greater thought on “subject to the jurisdiction thereof.”  The justices concluded in this sentence that both children (the child of resident aliens and the natural born child of a citizen) were both by operation the same principle.  Does this actually prove they were both therefore natural born citizens?

Justice Gray in writing the opinion of the court in this case went into a very a lengthy explanation of natural born citizens and subjects.  In the opinion, he writes:

It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.

III. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established. [v]

On the other hand, Chief Justice Fuller whom wrote the dissenting opinion in the Wong Kim Ark case stated the following:

Before the Revolution, the views of the publicists had been thus put by Vattel: ‘The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.’ Vatt. Law Nat. bk. 1, c. 19, 212. ‘The true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage. … The place of birth produces no change in the rule that children follow the condition of their fathers, for it is not naturally the place of birth that gives rights, but extraction. [vi]

We, therefore, have two differing opinions within this one case of the subject of natural born citizen.  Granted, weight must be given to the case’s opinion rather the case’s dissent.  However, for those whom are still convinced that the Wong Kim Ark case unequivocally argues that a child born on U.S. soil regardless of the status of their parents’ citizenship is a natural born citizen, I ask the following question.  Why did Justice Gray not make this argument, place these words in the final paragraph of the courts’ decision when he wrote:

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.[vii] (Emphasis added)

Justice Gray could have written, becomes at the time of his birth a natural born citizen of the United States, but he did not use this qualification.

The problem with the original quoted passage from Wong Kim Ark and in particular the sentence that we have been deconstructing is that the sentence is just poorly constructed especially for use within a precedent setting legal opinion.  This sentence could have been constructed in a much clearer fashion which would have obviated the confusion we have today regarding Wong Kim Ark’s case and its relationship to the natural born citizen subject.  And as stated in the last paragraph, Justice Gray could have removed all doubt in the final paragraph of his written opinion.  In fairness to the Justice, the Wong Kim Ark case was not a case that required Wong Kim Ark to be a natural born citizen.  The case simply needed to prove that Wong Kim Ark was a 14^th Amendment citizen.  It would have been convenient today if the quoted passage was more clearly defined in terms of natural born citizen status in a subsequent sentence by the Justices, but they felt no compelling reason to clear up any issues with regard to natural born citizens as their case did not require such a ruling.

As a result, it appears to this author that Wong Kim Ark really does not add precedent nor provide a final clarification of the natural born citizen definition, nor did the Minor v. Happersett case as to our legal impression of what was meant by natural born citizen.  Therefore, we remain without a legal definition of the term natural born citizen by our courts.

For a more thorough discussion on the Wong Kim Ark case please see the following discussions at the following website links:

http://naturalborncitizen.wordpress.com/2009/07/30/justice-horace-gray-clearly-indicated-wong-kim-ark-was-not-a-natural-born-citizen/

http://people.mags.net/tonchen/birthers.htm#ref14

http://federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered.html

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[i] Findlaw.com – U.S. Supreme Court U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649

[ii] Justice Gray was appointed by President Chester Author.  There has been question as to whether or not Chester Author usurped the Presidency of the United States.  For a thorough discussion on this topic please see Leo Donofrio’s blog posts on this subject at http://naturalborncitizen.wordpress.com

[iii] Findlaw.com – U.S. Supreme Court U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649

[iv] Findlaw.com – U.S. Supreme Court U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649

[v] Findlaw.com – U.S. Supreme Court U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649

[vi] Findlaw.com – U.S. Supreme Court U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649

[vii] Findlaw.com – U.S. Supreme Court U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649

Any reproduction of the content in this blog post must credit the author:  KJ Kaufman (aka:  curi0us0nefromthe60s) and must reference a link to this blog site https://hesnotmypresident.wordpress.com or link to the specific blog post cited.  You are free to distribute this content in order to educate the populous as long as you adhere to the aforementioned conditions.  Your cooperation in citing this source when reproducing, referencing or redistributing the content contained herein is greatly appreciated.

Natural Born Citizen — Chapter 5: Minor v. Happersett

Citizenship case before women’s suffrage

Minor v. Happersett was an 1872 case originating in Missouri brought by Virginia Minor who applied to Happersett (whom held the office of  Register of Voters at the time) to be a registered voter in the general election to be held in November of that year.[i]  This case preceded Women’s suffrage and the 19^th Amendment which was not ratified until 1920.[ii]  The case was referred to the United States Supreme Court.  Because the case included supposed rights obtained via the 14^th Amendment by a female wishing to vote, the opinion by the Supreme Court Justices broached the subject of a wide range of citizenship issues. 

The court first attempted to determine who were citizens of the United States at the time of the adoption of the Articles of Confederation and the adoption of the U.S. Constitution.  In the opinion written by the Chief Justice of the U.S. Supreme Court such citizens were defined as follows:

Whoever, then, was one of the people of either of these States when the Constitution of the United States was adopted, became ipso facto a citizen-a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was, consequently, one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were. [iii]

Interestingly enough, even though this case did not require the justices to determine whether or not someone was a natural born citizen, the court made reference to natural born citizens.  The Chief Justice’s opinion entertained the following on the issue of natural born citizens:

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [88 U.S. 162, 168]   parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words ‘all children’ are certainly as comprehensive, when used in this connection, as ‘all persons,’ and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.[iv] (Emphasis added)

It is a seminal point in this opinion when the Justice states:

“Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [88 U.S. 162, 168]   parents. As to this class there have been doubts, but never as to the first.” [v] 

Since this case references the 14^th Amendment and therefore obviously follows the 14^th Amendment, the precedent set here seems to indicate three crucial facts:

1. Affirmation that the Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that, and 
2. That there is no dispute that children born in the United States to parents that are U.S. citizens are natural born citizens, and 
3. Children that are born in the United States without reference to the citizenship of their parents are not without doubt citizens.

Remember, the courts should always seek to be as clear as is possible in their language within their writings as settled cases set precedent for cases that follow.  The Justices in this case clearly state the three critical points noted above in the case before them which occurred after the passage of the 14^th Amendment to the United States Constitution. 

Surprisingly (and I say surprisingly as a female), the conclusion of this case did not grant the appellant, Virginia Minor, suffrage rights.  The court argued that:

If the right of suffrage is one of the necessary privileges of a citizen of the United States, then the constitution and laws of Missouri confining it to men are in violation of the Constitution of the United States, as amended, and consequently void. The direct question is, therefore, presented whether all citizens are necessarily voters. [vi] 

The court concluded the following:

Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we

AFFIRM THE JUDGMENT.[vii]

The ruling is important to our discussion in that it did not grant additional rights via the 14^th Amendment to citizens of the United States.  In essence, it did not allow the 14^th Amendment to be in contradiction with the original holdings of the U.S. Constitution.  With respect to our discussion, unless so stated it would appear that the 14^th Amendment cannot change the understanding of natural born citizen known in the original text of the U.S. Constitution. 

The justices further argued in the case of suffrage:

We have given this case the careful consideration its importance demands. If the law is wrong, it ought to be changed; but the power for that is not with us.[viii]

In fact, it took another 48 years before the Constitution was amended and women were granted the right of suffrage.  Times change, societal norms evolve, new injustices are found, but the answer has always been to adhere to the Constitution, and, when applicable, to change it through the amendment process to update it to modern times.

As the Chief Justice in this case pointed out a definition of natural born citizen had yet to be determined.  Taking his thoughts along the lines of suffrage, we might also argue that if natural born citizen is ultimately defined as a person born on U.S. soil to U.S. citizen parents is wrong in that the law is wrong, it should not be argued that the law should not be upheld, but rather if the law is producing some sort of injustice then it should be changed.  In the case of the Constitution that provision would need to be changed through the Amendment process.

But it seems that we still do not know definitively what natural born citizen means.  At the time the case of Minor v. Happersett was argued in 1872, the justices claimed that there remained doubts as to whether or not a person born on U.S. soil without regard to their parents’ citizenship were natural born citizens.  The matter remains in question, but there is yet another subsequent case (U.S. v. Wong Kim Ark) that proponents for Barack Obama’s affirmative status as a natural born citizen rely upon which will be the subject of our next chapter.

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[i] Cornell University Law School’s Supreme Court collection — http://www.law.cornell.edu/supct/html/historics/USSC_CR_0088_0162_ZS.html

[ii] Cornell University Online Constitution — http://www.law.cornell.edu/constitution/constitution.amendmentxix.html

[iii] Findlaw.com – U.S. Supreme Court Minor v. Happersett, 88 U.S. 162 (1872) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=88&invol=162

[iv] Findlaw.com – U.S. Supreme Court Minor v. Happersett, 88 U.S. 162 (1872) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=88&invol=162

[v] Findlaw.com – U.S. Supreme Court Minor v. Happersett, 88 U.S. 162 (1872) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=88&invol=162

[vi] Findlaw.com – U.S. Supreme Court Minor v. Happersett, 88 U.S. 162 (1872) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=88&invol=162

[vii] Findlaw.com – U.S. Supreme Court Minor v. Happersett, 88 U.S. 162 (1872) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=88&invol=162

[viii] Findlaw.com – U.S. Supreme Court Minor v. Happersett, 88 U.S. 162 (1872) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=88&invol=162

Any reproduction of the content in this blog post must credit the author:  KJ Kaufman (aka:  curi0us0nefromthe60s) and must reference a link to this blog site https://hesnotmypresident.wordpress.com or link to the specific blog post cited.  You are free to distribute this content in order to educate the populous as long as you adhere to the aforementioned conditions.  Your cooperation in citing this source when reproducing, referencing or redistributing the content contained herein is greatly appreciated.

The Natural Born Citizen Book

For those of  you who are following my book Natural Born Citizen being posted on this blog, I thought I would make it easier for you to find the chapters you wish to revisit or to start the book from beginning to end.  Below you will find links to each of the chapters of the book.    On September 25, 2009, I completed the book, and in late November 2009, I published the book.  For those of you who would like to purchase the book, so that you have a copy to carry around with you to help generate discussion on the matter, click on the image to the left.   I sincerely hope you enjoy the book and that it assists in opening a national dialogue on the subject matter. 

Prologue to the book on the natural born citizen issue

Natural Born Citizen — Chapter 1:  Introduction

Natural Born Citizen — Chapter 2:  Constitutional Requirements

Natural Born Citizen — Chapter 3:  The Naturalization Act of 1790

Natural Born Citizen — Chapter 4:  The 14th Amendment

Natural Born Citizen — Chapter 5:  Minor v. Happersett

Natural Born Citizen — Chapter 6:  U.S. v. Wong Kim Ark

Natural Born Citizen — Chapter 7:  Natural Born Citizen Remains Debatable

Natural Born Citizen — Chapter 8:  Dual and Multi Citizenship

Natural Born Citizen — Chapter 9:  Allegiance

Natural Born Citizen — Chapter 10:  Summation

Natural Born Citizen — Chapter 11:  Congressional Duties

Natural Born Citizen — Chapter 12:  The Media

Natural Born Citizen — Chapter 13:  The Courts

Natural Born Citizen — Chapter 14:  Legal Remedies

Natural Born Citizen — Chapter 15:  Conclusive Remarks

Natural Born Citizen — Chapter 4: The 14th Amendment

Change to United States citizenship law

Since it has been noted that the United States Constitution does not define natural born citizen in Article II, Section 1, we must look at all other Articles and Sections within the Constitution as well as its Amendments to discover whether or not the issue is addressed and the words natural born citizen have been defined.  Within the original Constitution no other mention of natural born citizen is cited.  There are certainly other sections of the Constitution where requirements to hold office are detailed.  For example, in Article I, Section 3 of the U.S. Constitution, the requirements to hold the office of Senator is stated as follows:

No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.[i]

There is no mention of natural born citizen in the requirement for Senator, simply the requirement to be a citizen for nine years.  John McCain’s place of birth and Barack Obama’s Father’s citizenship would not, therefore, necessarily preclude these men from meeting the citizenship requirements to be U.S. Senators.

On July 28, 1868, the 14^th Amendment to the United States Constitution was ratified by the required three-fourths of the States.  The 14^th Amendment directly dealt with the issue of citizenship and provided for citizenship to former slaves recently freed via the Civil War and the Emancipation Proclamation.  Also known as the “Reconstruction Amendment,” the 14^th Amendment begins:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.  No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[ii]

When the debate regarding Barack Obama’s citizenship first surfaced, many of Barack Obama’s supporters pointed to the 14^th Amendment as their proof that Barack Obama was eligible to be President.  The argument they make goes something like this:

… Barack Obama is, in fact, a natural-born citizen of the United States, for the simple reason that he was born on American soil (in Hawaii, two years after it acquired statehood). The age and citizenship status of Obama’s parents at the time have no bearing on Obama’s own citizenship.

Any confusion on this point is the result of misunderstanding the legal concepts of jus sanguinis (right of blood) and jus soli (right of birthplace).[iii]

We learned earlier in our discussion that de Vattel unequivocally believed that both jus sanguinis (right of blood) and jus soli (right of birthplace) were requirements to be natural born citizens not simply jus soli (right of birthplace) as the above argument contends.  In addition, it has always surprised me that the 14^th Amendment has been relied upon so heavily by those who argue it makes Barack Obama a natural born citizen as nowhere contained therein is the term natural born citizen. 

I was not aware until today, however, (a day after posting this chapter of the book) that referenced on one of Barack Obama’s campaign websites Fight the Smears was a statement regarding Barack Obama’s citizenship with reference made to the 14^th Amendment.  While reading a respected legal blogger known as jbjd, I found the following post “If Drowning out Opposing Facts is ‘Un-American,’ then Ignoring Unpleasant Facts Must Be Un-American.”[iv]  In the blog post, jbjd references the Fight the Smears website which states:

Senator Obama was born in Hawaii in 1961, after it became a state on August 21^st 1959.  Obama became a citizen at birth under the first section of the 14^th Amendment. [v]

It is amazing that a candidate’s own website would reference a citizenship amendment via the 14^th Amendment declaring that the candidate is a citizen when it is distinctly evident that the qualification for President is to be a natural born citizen.

For those that are still convinced that the 14^th Amendment proves that Barack Obama is a natural born citizen by virtue of his birth in Hawaii, let us look at the words of John Bingham credited as the father of the 14^th Amendment.  Mr. Bingham said in 1866 while speaking to the first session of the 39^th Congress:

I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen; but sir, I may be allowed to say further, that I deny that the Congress of the United States ever had the power or the color of power to say that any man born within the jurisdiction of the United States, not owing foreign allegiance, is not and shall not be a citizen of the United States.  Citizenship is his birthright, and neither the Congress nor the States can justly or lawfully take it from him.[vi] (Emphasis added)

In the Congressional record, John Bingham makes clear reference to a difference between natural born citizens and citizens that difference being jus sanguinis, i.e., the citizenship of the parents.   I ask those proponents of Barack Obama’s natural born citizenship status how then does the 14^th Amendment support that status when the father of the 14^th Amendment , John Bingham, in his own words states:

that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…[vii]

Barack Obama’s father was a British Citizen temporarily residing in the United States while he attended school.  Barack Obama’s father clearly owed allegiance to a foreign sovereign.  In the words of the father of the 14^th Amendment that makes Barack Obama a citizen of the United States of America but not a natural born citizen. 

For those who deny the importance of this statement, we shall look at those significant cases on citizenship that followed the 14^th Amendment to see if we can find any indication that the understanding of natural born citizenship that Mr. Bingham purported has somehow changed in meaning and application.

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[i] Cornell University Online Constitution — http://www.law.cornell.edu/constitution/constitution.articlei.html#section3

[ii] Cornell University Online Constitution – http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html

[iii] About.com in the comments section of a post entitled: “Email Claims Barack Obama Isn’t a Natural Born Citizen” — http://urbanlegends.about.com/od/barackobama/a/obama_citizen.htm

[iv] Word Press Blog by jbjd “If Drowning Out Opposing Facts is ‘Un-American,’ then Ignoring Unpleasant Facts Must Be Un-American, Too” — http://jbjd.wordpress.com/2009/08/13/if-drowning-out-opposing-facts-is-un-american-then-ignoring-unpleasant-facts-must-be-un-american-too/#comment-839

[v] Word Press Blog by jbjd “If Drowning Out Opposing Facts is ‘Un-American,’ then Ignoring Unpleasant Facts Must Be Un-American, Too” — http://jbjd.wordpress.com/2009/08/13/if-drowning-out-opposing-facts-is-un-american-then-ignoring-unpleasant-facts-must-be-un-american-too/#comment-839

[vi] The Congressional Online Record “The Congressional Globe p. 1291” — http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=332

[vii] The Congressional Online Record “The Congressional Globe p. 1291” — http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=332

Any reproduction of the content in this blog post must credit the author:  KJ Kaufman (aka:  curi0us0nefromthe60s) and must reference a link to this blog site https://hesnotmypresident.wordpress.com or link to the specific blog post cited.  You are free to distribute this content in order to educate the populous as long as you adhere to the aforementioned conditions.  Your cooperation in citing this source when reproducing, referencing or redistributing the content contained herein is greatly appreciated.

Natural Born Citizen — Chapter 3: The Naturalization Act of 1790

Temporary clarification by the Congress of natural born citizen

In looking at the term natural born citizen, we must also look to other indications of what the founders were thinking during and shortly after the time of drafting and ratifying the Constitution.  In Article I of the U.S. Constitution, the founders vested legislative powers in the Congress.  One of those enumerated powers vested in the Congress was the power to “establish a uniform rule of naturalization.”[i]  In accordance with this power, the Congress passed The Naturalization Act of 1790.

Some proponents of Senator McCain’s and some opponents of Barack Obama’s status as a natural born citizen point no further than to The Naturalization Act of 1790 legislated during the Second Session of the First Congress.  The following portion of the Act discussed natural born citizen as follows:

And the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States.  And the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens:  Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States:  Provided also, That person heretofore proscribed by any State, shall be admitted as a citizen as aforesaid, except by an act of Legislature of the State in which such person was proscribed.[ii]

The legislation makes the case that John McCain is in fact a natural born citizen as the legislation clearly states:  “And the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens.”  Therefore, proponents of John McCain’s natural born citizen status appear to have the definition they need to assert John McCain is a natural born citizen, but unfortunately, this is not the case.

The Naturalization Act of 1790 as quoted above does not stand today in its original form and is not the final legislation on naturalization and citizenship.  The Naturalization Act of 1790 has been revised numerous times, and in 1795 the words natural born citizen were repealed from the act altogether.[iii]   It remains important, however, that just three years after the United States Constitution was written and two years after it was ratified, the legislature placed significant importance on jus sanguinis.  In The Naturalization Act of 1790, they seemed to place significance on jus sanguinis rather than jus soli.  So why did the legislature redact this definition a mere five years later?  The answer could be as simple as the Congress realized that they did not have the power granted in Article I, Section 8 of the Constitution to define natural born citizen within their powers to enact naturalization laws.  Their power was to create legislation with respect to the naturalization of persons as U.S. citizens.  Many argue that the status of natural born citizen cannot come under naturalization legislation because it is a “natural” condition that one holds at birth, and is not a condition that naturalization legislation can confer upon a person. 

In the non-binding Senate Resolution that we looked at to open the book, the resolution stated as part of its arguments for affirmation of John McCain’s natural born citizen status the following:

Whereas such limitations would be inconsistent with the purpose and intent of the ‘‘natural born Citizen’’ clause of the Constitution of the United States, as evidenced by the First Congress’s own statute defining the term ‘‘natural born Citizen <snip>”[iv]

The Senate Resolution is clearly referencing The Naturalization Act of 1790 here, but they do not go on to state that the natural born citizen definition was later repealed from this legislation.  Why would they leave out such a critical caveat?  Could it be because there would still be questions as to John McCain’s status?  Also important, in using this argument, was the Senate not begging the question that a natural born citizen must be of citizen parents?  And if they were begging this question, then wouldn’t it appear to them that Barack Obama may have some issue when it came to natural born citizen status?  Barack Obama co-sponsored this resolution.  Are we to believe that in the resolution’s own wording and arguments that Mr. Obama did not see a significant problem with his own natural born citizenship status?  Yet, neither the Senate nor Mr. Obama ever brought to light this significant issue.  The American People were never made aware that through the Senate’s own non-binding Resolution, the United States Senate was begging the question that jus sanguinis plays a part in natural born citizen status.

In fairness to the Senators, let’s give them the benefit of the doubt at this point and let’s look into further legislation and court cases that were not covered in the non-binding Senate Resolution to see if the Senators at least had something more to go on in their deliberations as to who is and who is not a natural born citizen.

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[i] Cornell University Online Constitution, Article I, Section 8 — http://www.law.cornell.edu/constitution/constitution.articlei.html#section8

[ii] Harvard University Library “The Naturalization Act of 1790 — http://ocp.hul.harvard.edu/immigration/outsidelink.html/http://nrs.harvard.edu/urn-3:HLS.LIBR:981715

[iii] The Library of Congress Naturalization Act of 1795 — http://rs6.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=537

[iv] Senate Resolution on McCain’s Eligibility — http://leahy.senate.gov/press/200804/041008c.html

Any reproduction of the content in this blog post must credit the author:  KJ Kaufman (aka:  curi0us0nefromthe60s) and must reference a link to this blog site https://hesnotmypresident.wordpress.com or link to the specific blog post cited.  You are free to distribute this content in order to educate the populous as long as you adhere to the aforementioned conditions.  Your cooperation in citing this source when reproducing, referencing or redistributing the content contained herein is greatly appreciated.